Pattison v Bellin
[2000] FCA 1167
•22 AUGUST 2000
FEDERAL COURT OF AUSTRALIA
Pattison (Trustee), In the matter of Bellin (Bankrupt) v Bellin [2000] FCA 1167
BANKRUPTCY – trustee’s remuneration – resolution of creditors regarding remuneration previously passed – previous remuneration approved – approval for future fees up to certain amount – approval required for remuneration over certain amount – creditors paid in full – whether creditors can approve further remuneration when paid in full – whether creditors reserved to themselves the power to award future remuneration – Federal Court of Australia does not have power to fix remuneration of trustee.
Bankruptcy Act 1966 (Cth): s 162
Re Hatcher; Ex parte Hatcher (unreported, French J, 6 November 1987) distinguished
IN THE MATTER OF BERYL RITA BELLIN
PAUL ANTHONY PATTISON (as Trustee of the Bankrupt Estate of BERYL RITA BELLIN) v BELLIN
V 7248 of 2000GOLDBERG J
22 AUGUST 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 7248 of 2000
IN THE MATTER OF BERYL RITA BELLIN
BETWEEN:
PAUL ANTHONY PATTISON (as Trustee of the Bankrupt Estate of BERYL RITA BELLIN)
ApplicantAND:
BERYL RITA BELLIN
Respondent
JUDGE:
GOLDBERG J
DATE:
22 AUGUST 2000
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Introduction
The applicant is the Trustee of the bankrupt estate of the respondent. The issue before the court is whether the Trustee is entitled to be paid an amount for remuneration and costs and expenses incurred in the administration of the estate in addition to amounts already received by him as a result of an earlier resolution of the creditors of the respondent. In addition to the remuneration he has already received, the applicant claims to be entitled to be paid a further $32,927.60 in respect of remuneration and a further $1,379,67 in respect of costs and expenses incurred in administering the estate of the respondent. The Trustee seeks to have these amounts fixed, pursuant to s 162 of the Bankruptcy Act 1966 (Cth) (“the Act”), either pursuant to the Bankruptcy Regulations or by resolution of the creditors of the respondent or by the Court.
The reason why the Trustee has applied to the Court is that a resolution of the respondent’s creditors was passed on 2 September 1997 in respect of the Trustee’s remuneration costs and expenses. The resolution was in the following terms:
“That the remuneration of the trustee be fixed on the hourly system at the rates laid down or recommended from time to time for bankruptcy work by the Insolvency Practitioners Association of Australia for the Melbourne District together with out of pocket expenses necessary and reasonably incurred to 31 July, 1997 in the sum of $8,916.49 and that the trustee can draw the remuneration and expenses on a monthly basis or as required and that future remuneration to finalisation of the administration be limited to $20,000 before further authorization from creditors was required.”
The Trustee’s further amended application seeks answers to the following questions:
“1.Is the Applicant entitled to claim remuneration, costs and expenses in respect of administering the estate of Beryl Rita Bellin in addition to the amounts approved by a resolution of creditors on 2 September, 1997?
2.If the answer to question 1 is yes, is the Applicant entitled to seek the approval of the creditors in respect of any further claims for remuneration, costs and expenses?
3.If the answer to question 1 is yes, but the answer to question 2 is no, what is the appropriate quantum of such remuneration costs and expenses? [particulars of remuneration costs and expenses are given claiming $34,307.27]
4.Is the applicant entitled to remuneration, costs and expenses including legal costs incurred in bringing this application and administering the estate after 30 April 2000 and if so, upon what basis?”
A declaration is also sought that the Trustee is authorised to recover from the respondent such remuneration and costs and expenses as may be found owing.
The respondent has filed a cross‑claim seeking payment of the balance of the funds held by the Trustee in respect of the estate and an order that the Trustee give the Official Receiver a certificate under s 153A(2) of the Act annulling the respondent’s bankruptcy.
The respondent submitted that the resolution passed on 2 September 1997 foreclosed any further entitlement of the Trustee to be paid remuneration or to be reimbursed for expenses incurred in respect of his administration of the respondent’s estate. The Trustee submitted that:
·the resolution did not fix remuneration after 31 July 1997 so that s 162(4) of the Act applied;
·if the remuneration was fixed after 31 July 1997 the creditors reserved in the resolution the opportunity for the Trustee to come back to them for authorisation of further remuneration.
Background
A sequestration order was made against the estate of the respondent on 10 October 1996 and the applicant was appointed Trustee of her estate. The respondent will be discharged from bankruptcy on 7 March 2003, unless an objection is lodged, as her statement of affairs was only filed with the Insolvency and Trustee Service Australia on 6 March 2000. It had been sent to the Court and the Trustee on 28 February 1997.
The respondent was the registered proprietor of a property situated at Werribee which was subject to a mortgage to the National Australia Bank. In May 1997 the Trustee sold the property for $1,225,000. The sale was settled on 1 October 1997 and the Trustee received the balance of the sale price of $184,680 after paying the Bank’s mortgage and the costs associated with the sale.
On 20 August 1997 the Trustee supplied a report to creditors in which he stated that his fees and expenses to 31 July 1997 were $8,916.49. At the meeting of creditors held on 2 September 1997 the creditors approved those fees and expenses and approved any future fees to finalisation of the administration of the estate to $20,000 “before further authorisation from creditors was required”.
On 28 October 1997 the respondent’s solicitors requested that some of the surplus funds available from the estate be paid to the respondent. The Trustee sent to the solicitors a cheque for $75,000 on account of the respondent’s entitlement to the surplus of the estate and a cheque for $9,521.60, with the authority of the respondent, for their legal fees.
On 11 December 1997 the respondent’s new solicitors wrote to the Trustee alleging that he had sold the Werribee property for less than its proper market value. In the letter the solicitors put the Trustee on notice that the respondent intended to take action against the Trustee in relation to the sale of the land at an undervalue and in relation to the fact that the bankruptcy proceedings had proceeded against the respondent notwithstanding that the former solicitors were holding sufficient money to pay out the petitioning creditor.
On 22 December 1997 the Trustee wrote to the respondent and informed her that he was unable to issue her with a certificate of annulment until all debts had been paid in full. At that stage the petitioning creditor’s costs had not been paid as they were awaiting taxation. On 6 January 1998 the Trustee wrote to the respondent’s solicitors providing details in relation to sale of the property. He also informed the solicitors that until the respondent had released him from any proposed legal action in the matter he would not be in a position to finalise the administration and provide the respondent with a certificate of annulment.
On 16 February 1998 the Trustee notified the respondent’s solicitors that the petitioning creditor’s costs had been taxed and paid but that until he had been released by the respondent from any proposed legal action in the matter of the sale of the property he was not in a position to finalise the administration of the estate and provide a certificate of annulment. The respondent’s new solicitors threatened legal proceedings unless the certificate of annulment was filed.
On 8 May 1998 the respondent issued proceedings against the Trustee in the Federal Court seeking orders, in substance, that the Trustee be directed to provide a certificate of annulment pursuant to s 153A(2) of the Act and that the balance of the money held by the Trustee in the account of the bankrupt estate be paid to her. The respondent also sought an order that the time within which an application can be made to the Registrar for taxation of the Trustee’s remuneration pursuant to Reg 8.09 of the Bankruptcy Regulations be extended. The application was heard before Kenny J on 30 November 1998 and on 25 February 1999 Kenny J dismissed the respondent’s application and ordered the respondent to pay the Trustee’s costs on a solicitor and client basis. Her Honour found that if any proceeding was instituted against the Trustee he would have an entitlement to reimbursement from the respondent’s estate in respect of the costs and expenses incurred in defending the proceeding. Her Honour also found that it was open for the Trustee not to be satisfied that all the respondent’s debts had been paid for the purposes of s 153A(1) of the Act as the Trustee:
“was entitled to consider whether the costs and expenses of the administration of the bankruptcy could properly be regarded as at an end and, in so doing, to have regard both to the fact that it was the bankrupt’s stated intention to institute a proceeding relating to his administration of the estate, namely a proceeding contesting the propriety of the sale of the Sneydes Road property, and to the fact that he might reasonably choose to defend any such proceeding and properly incur costs and expenses in so doing.”
Her Honour concluded:
“In my view, however, the applicant cannot practicably compel the respondent to give a certificate of annulment when he has not yet reached the satisfaction referred to in s 153A(1) by reason of the threatened proceeding.”
Her Honour refused to extend the time to enable the respondent to request the taxation of the Trustee’s remuneration which had been fixed at the meeting of creditors on 2 September 1997.
The Trustee incurred fees and expenses in defending the proceeding brought by the respondent and his remuneration and expenses incurred for the period from 31 July 1998 to 28 February 1999, which related primarily to the court proceeding, calculated in accordance with the rate prescribed by the Insolvency Practitioners’ Association of Australia (“IPAA”), were $12,083.02.
At the commencement of the proceeding on 8 May 1998 the Trustee held $32,789.32 in the account which he operated in respect of the estate. This amount was challenged by the respondent but the Trustee has explained how that amount is arrived at and I accept his explanation.
On 23 April 1999 the Trustee’s solicitors wrote to the respondent’s solicitors noting that the Trustee’s remuneration and expenses until the end of March 1999 had increased to $12,850.07 and proffered a release to be signed by the respondent after which a certificate of annulment could be provided. At that time the Trustee had paid all the legal fees and expenses in relation to his defence in the Federal Court proceeding out of the respondent’s estate and he thought that he held sufficient funds in the account to finalise the estate and pay his outstanding remuneration and expenses.
However, there followed thereafter an exchange of correspondence between the respondent’s solicitors and the Trustee’s solicitors. In substance, the respondent’s solicitors sought details of the Trustee’s remuneration and expenses and some of these details were provided. The Trustee had incurred legal fees and expenses in respect of the proceeding of $16,123.43. The respondent’s solicitors requested that the Trustee’s remuneration and legal costs be taxed. On 2 August 1999 the Trustee’s solicitors sent the respondent’s solicitors a bill of costs in taxable form in respect of the Trustee’s solicitor and costs associated with the proceeding in the sum of $12,194. The Trustee’s legal costs were taxed and allowed at $10,871 and a certificate for this amount was issued on 27 September 1999.
The Trustee commenced a procedure to have his remuneration and expenses taxed by the Insolvency and Trustee Association of Australia (“ITAA”) and the taxation commenced on 21 July 1999 and continued thereafter. On 14 September 1999 (the fourth day fixed for the taxation) the taxation was adjourned to enable the respondent’s solicitor to obtain instructions to withdraw the request for taxation which occurred on 16 September 1999.
The respondent has still not signed a release in favour of the Trustee although the respondent’s counsel at the hearing indicated that the respondent had no objection to signing a release. The Trustee said that had the respondent signed the release at the time of his initial request the estate would have been finalised and the certificate of annulment issued at which time the funds which he held in the account of the estate would probably have been sufficient to cover his remuneration, legal fees and expenses. The respondent had objected to signing the release proffered by the Trustee as she claimed it was too wide and covered a release in relation to the Trustee’s remuneration and expenses as well as in relation to the sale of the land at an undervalue. The Trustee said that as a result of the respondent’s actions in failing to sign the release, the amount of correspondence that had passed between their respective solicitors and the need to have two sets of fees and expenses taxed, he had incurred further costs and expenses including legal fees and expenses which now exceed the amount remaining in the account of the respondent’s estate. The Trustee requested the respondent to pay him sufficient funds to cover his outstanding remuneration and expenses but the respondent challenged the Trustee’s right to claim, or be paid, any further remuneration.
The present position is that the Trustee is claiming $34,307.27 in respect of remuneration, costs and charges to 30 April 2000. Of this amount, $32,927.60 represents remuneration including costs and charges of his consultants and employees. It comprises:
·Litigation costs to 30 April 1999 $ 6,777.40
·Non-litigation costs to 30 April 1999 $ 6,496.20
·Administration of estate 1 May 1999 $19,654.00
to 30 April 2000 $32,927.60
The Trustee also claims costs and expenses of $1,379.67 incurred prior to 30 April 2000. The total amount claimed by the Trustee is calculated on the basis of 100% of the charges set out in the IPAA Guide to Hourly Rates published by the IPAA. However if the Trustee’s remuneration is to be determined, pursuant to s 162(4) of the Act, by reference to the Bankruptcy Regulations, only 85% of this amount is allowed: Reg 8.08.
As at 16 May 2000 the Trustee held $4,586.78 in the bank account of the respondent’s estate which is insufficient to cover the remuneration and expenses for which he is seeking payment. The respondent contests the right of the Trustee to be paid this amount for remuneration and expenses.
Reasoning
It is not disputed that the Trustee is entitled to be reimbursed from, or indemnified out of, the trust estate in respect of the costs and expenses properly incurred by him administering the estate and that he is ordinarily entitled to receive remuneration: Re: Ladyman (1981) 38 ALR 631 at 643; Mayne v Jaques (1959) 101 CLR 169 at 173, 178, 180; Adsett v Berlouis (1992) 109 ALR 100 at 109‑110. The manner in which the Trustee’s remuneration is to be determined is found in s 162 of the Act which, relevantly, provides:
“(1) Subject to section 161B, the remuneration of the trustee of the estate of a bankrupt may be fixed, from time to time, by resolution of the creditors or, if the creditors so resolve, by the committee of inspection.
…(4) Where the remuneration of the trustee is not fixed by the creditors or the committee of inspection, the trustee is to be remunerated as prescribed by the regulations.”
Section 161B of the Act is not relevant for present purposes.
Regulation 8.08 of the Bankruptcy Regulations provides:
“For the purposes of subsection 162(4) of the Act, the remuneration of a trustee is to be:
(a)in accordance with the scale of charges, that is:
(i)set out in the IPAA Guide to Hourly Rates published by the Insolvency Practitioners’ Association of Australia; and
(ii)applicable to the work to be remunerated; and
(b)at the level of 85 percent of those charges.”
No provision is made in the Act for the Court itself to fix or determine the remuneration of a trustee. This was not always the position. Prior to 1996, s 162 relevantly provided:
“(1) Subject to section 161B, the remuneration of the trustee of the estate of a bankrupt may be fixed, from time to time, by resolution of the creditors or, if the creditors so resolve, by the committee of inspection.
…(4) Where the remuneration of the trustee is not fixed by the creditors or the committee of inspection, the Registrar may fix the remuneration.
(5) the Registrar may, on the application of a creditor or the trustee or of his own motion, review the amount of the trustee’s remuneration and may confirm, reduce or increase the remuneration.”
Subsection 162(4) was amended, and subs 162(5) was omitted, by the Bankruptcy Legislation Amendment Act 1996 (Cth). The Explanatory Memorandum which accompanied the Bankruptcy Legislation Amendment Bill 1996 explained the proposed amendments to s 162 in the following terms:
“Where the remuneration of a registered trustee is not fixed by resolution of creditors or by the committee of inspection, the Registrar is empowered to determine the trustee’s remuneration. Item 301 proposes an amendment to subsection 162(4) so that it will provide that where the trustee’s remuneration has not been fixed by resolution of the creditors or by the committee of inspection, then the trustee is to be remunerated in accordance with the regulations. The regulations could, for example, provide for the trustee to be remunerated in accordance with the scale of fees payable to the Official Trustee, or could provide for a separate scale of remuneration for registered trustees.
Item 302 also proposes the omission of subsection 162(5) which enables the Registrar to review the remuneration of the trustee. Section 178 of the Act enables a person who is affected by any act, omission or decision of a trustee to appeal to the Court. It is considered that a person who considered that the remuneration taken by a trustee was excessive could make an application under section 178 for an order relating to the remuneration.”
Section 178 of the Act provides:
“If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable.”
As I have noted earlier, there is no specific provision in the Act which entitles or empowers the Court to fix or determine the remuneration of a trustee. The nature of the amendments to s 162 in 1996 confirms the conclusion that there was not a legislative intention that the Court would, in any situation, fix the remuneration of a trustee. Rather, the fixing or determination of a trustee’s remuneration is to be made by the creditors, the committee of inspection or by reference to the IPAA scale.
The Trustee’s primary submission was that the creditors had not fixed the Trustee’s remuneration after 31 July 1997 so that, in accordance with s 162 of the Act, the Trustee’s remuneration in respect of the period after that date was to be determined by reference to the Bankruptcy Regulations. The respondent’s principal submission was that, for the purpose of s 162(4) of the Act, the remuneration of the Trustee had been fixed by the creditors at the meeting on 2 September 1997 with the result that there was no other basis for any fixing of any further remuneration for the Trustee. I do not accept those submissions. The resolution passed on 2 September 1997 did not fix the Trustee’s remuneration finally on a once and for all basis but rather made a three stage provision for the fixing of that remuneration. First, the remuneration and expenses for the period up to 31 July 1997 were fixed at $8,916.49. Secondly, remuneration and expenses after that date until finalisation of the administration of the estate were provisionally limited to $20,000. Thirdly, if the Trustee sought remuneration and the recovery of expenses in excess of $20,000 before finalisation of the administration of the estate the creditors were to be asked for further authorisation. The terms of the resolution made it clear that the creditors were not fixing the amount of the Trustee’s remuneration and expenses finally for the purposes of the whole of the administration of the respondent’s estate. They were reserving to themselves the opportunity to authorise further remuneration for the Trustee if he wished to apply for it. Such a resolution is consistent with the terms of s 162 of the Act which enables the creditors, by resolution, to fix the remuneration of the Trustee “from time to time”.
The respondent challenged this construction of the resolution on the basis that the resolution was inconsistent with the Trustee’s proposal in the report to the creditors accompanying the meeting of creditors. In the report the Trustee said he would be requesting creditors to approve his fees and expenses to date ($8,916.49) and to approve his future remuneration to finalisation of the administration capped at $20,000. I do not consider that the resolution, which is clear in its terms, should be qualified by reference to what the Trustee proposed in the report. There is no ambiguity in the resolution and it is not suggested that the creditors were misled in any way. The respondent submitted that a trustee is obliged to act justly in relation to the estate but there is no reason why the trustee should not be allowed to rely upon the resolution in the terms in which it was passed simply because it gives him the opportunity to obtain more remuneration if the situation arises. The resolution was not giving the Trustee carte blanche in respect of his remuneration over $20,000; rather it reserved that decision for the creditors.
The respondent submitted that even if the terms of the resolution on 2 September 1997 left it open to the creditors to resolve that the Trustee be allowed further remuneration, that situation was no longer available as the creditors had been paid in full and there was no one who answered the description of “creditor” who could pass the relevant resolution. The respondent relied upon Re Hatcher; Ex parte Hatcher (unreported, French J, 6 November 1987) for the proposition that once the creditors have been paid in full it was not open to them to resolve to fix any further remuneration for the trustee as they were not doing so in their capacity as “creditors”.
The only definition of “creditor” found in the Act is when the expression “creditor” is used “in relation to a liability under a maintenance order”: s 5(1). There have been a number of decisions which have considered whether persons such as a judgment creditors or assignees of debts are a “creditor” so as to qualify them to serve a bankruptcy notice for the purposes of s 40(1)(g) of the Act but those decisions are of no assistance in resolving the present issue. For present purposes, I approach the matter on the basis that a “creditor” for the purposes of s 162 of the Act is a person who is entitled to prove in the bankruptcy of the respondent.
In Re Hatcher the bankrupt applied for an annulment of his bankruptcy under the predecessor to s 153A of the Act. The trustee objected to the annulment on the ground that the bankrupt had been unco‑operative. French J found that the only real ground of opposition from the trustee was that part of his remuneration remained unpaid. The bankrupt had three creditors who had been paid in full. After they had been paid their debts the trustee called a meeting of creditors who resolved that the remuneration of the trustee be approved in the sum of $1,337. French J was not satisfied that what took place when the resolution was passed was a meeting of creditors as all the creditors had been previously paid in full. He therefore was not prepared to hold that the trustee was entitled to the remuneration which he claimed although he found that the trustee was entitled to a reasonable remuneration, whether or not the creditors fixed that remuneration relying on Mayne v Jaques (supra). French J said at 9:
“There is a facility provided by s. 162 of the Act whereby the trustee can apply to the Registrar to fix the remuneration. This, I think, is the course the trustee should have taken and should now take in respect of remuneration for the period from 19 December 1986.”
As I have noted earlier the provision in s 162(4) whereby the Registrar may fix the trustee’s remuneration was amended in 1996 to take away that power from the Registrar and to provide that the trustee is to be remunerated as prescribed by the Bankruptcy Regulations where the creditors or the committee of inspection have not fixed the remuneration.
I consider that the circumstances in Re Hatcher are distinguishable from the present case. It does not appear in Re Hatcher that there had been any prior resolution of creditors which had fixed the remuneration of the trustee for a particular period or that the creditors had reserved for their further consideration the fixing of remuneration. I accept that if the creditors of a bankrupt estate have been paid in full there is no warrant for describing them thereafter as “creditors” with an ongoing function. However, if the creditors pass a resolution at a point of time where their debts are still outstanding and unpaid it is open to them to determine the manner in which they will fix the trustee’s remuneration. On 2 September 1997 the resolution passed by the creditors was within their authority and power. At the time they saw fit to reserve to themselves the power thereafter, if requested by the Trustee, to fix further remuneration in respect of the period up to the finalisation of the administration of the respondent’s estate. In such circumstances the subsequent payment of their debts does not disentitle them from completing the task they had undertaken whilst creditors.
In the present circumstances I am satisfied that it is still open to those persons who answered the description “creditors” at the time of the resolution on 2 September 1997 to fix the final remuneration of the trustee, if they are so disposed to pass the resolution, over and above the $20,000 referred to in the earlier resolution.
It is therefore open to the Trustee, if he wishes to obtain remuneration and recovery of expenses over and above the $20,000 referred to in the resolution on 2 September 1997, to call a further meeting of those persons who were creditors at the time of the meeting on 2 September 1997 to consider, and if thought fit, to pass a resolution fixing his remuneration.
Having regard to the conclusion which I have reached it is not necessary to consider the alternative submission made by the Trustee that he was entitled to receive remuneration as prescribed by Reg 8.08 of the Bankruptcy Regulations, in accordance with s 162(4) of the Act, as his remuneration had not been fixed by the creditors or the committee of inspection. The Trustee submitted in the alternative that his remuneration had not been fixed by the creditors as there had been reserved the power to fix the remuneration over and above the $20,000 specified in the resolution of 2 September 1997. I do not agree. It cannot be said that the remuneration of the Trustee has not been fixed by the creditors. As I have noted earlier it was fixed on 2 September 1997 on a three stage basis and the creditors reserved to themselves the power to fix further remuneration of the Trustee.
As the Court has no power itself to fix the remuneration of the Trustee and as I have found that it is open to those persons who were creditors at the time of the resolution on 2 September 1997 to fix the further remuneration which the Trustee is claiming, it is not necessary or useful to consider the competing submissions made as to the quantum or entitlement of the Trustee to the amount of remuneration which he is claiming. That is a matter for the creditors.
The respondent was critical of the information supplied by the Trustee justifying the remuneration he was claiming. The respondent submitted that in order for the Trustee to establish an entitlement to a claim for remuneration he had to provide evidence that he had carried out the work in respect of which he was claiming remuneration. The respondent submitted that no such evidence had been provided. The Trustee produced time sheets to justify the remuneration claimed. The respondent considered the information inadequate and sought further particulars. The Trustee responded by referring to an affidavit he had filed. This affidavit was not responsive to the particulars sought. Although the time sheets do not describe the nature of the work carried out by the Trustee I am satisfied that the Trustee has produced sufficient information to enable him to make a claim for remuneration and reimbursement of costs and expenses. Whether he can justify the amount claimed will depend upon the view taken of his claim and any criticisms raised by the respondent.
The matters to which I have referred effectively answer the four questions in respect of which the Trustee seeks answers. Although there is a contest between the Trustee and the respondent as to the manner in which the Trustee has administered the respondent’s estate, I consider that the Trustee is entitled to receive remuneration, costs and expenses, including legal costs incurred in bringing the application before the Court as it was contested by the respondent. As the Trustee has been successful in relation to the substantive application made by him I consider that the respondent should pay the Trustee’s legal costs of and incidental to the application. Any remuneration and reimbursement costs and expenses incurred or sought after 30 April 2000 are matters for the creditors to resolve.
It follows from the matters to which I have referred that the respondent’s cross‑claim for payment of the balance of the funds held by the Trustee should be dismissed. Any such balance, if there be a balance, should not be disbursed until after there has been a final determination by the creditors of the remuneration to which the Trustee is entitled and any costs and expenses in respect of which the Trustee is entitled to reimbursement.
Save for the outstanding claim of the remuneration, the reimbursement of costs and expenses incurred in administering the estate and the payment of the costs of this application the estate will be fully administered. Because of these outstanding issues the Trustee cannot yet be satisfied that all the respondent’s debts have been paid in full. Accordingly it is premature to order that the Trustee give the Official Receiver a certificate under s 153A(2) of the Act annulling the respondent’s bankruptcy. The Trustee raised an issue that the respondent had failed to provide the Trustee with relevant address and income information. This was contested by the respondent who provided some of this information in her second affidavit. However the Trustee accepted that this issue of itself would not be regarded by him as an obstacle to the provision of a certificate.
In order to bring finality to the administration of the respondent’s estate I would be prepared at this stage to consider ordering that, subject to the payment of such remuneration and reimbursement of such costs and expenses as any meeting of creditors called by the Trustee may be disposed to approve, and subject to the payment by the respondent of the applicant’s legal costs of this proceeding, the Trustee give a certificate to the official receiver under s 153A(2) of the Act annulling the respondent’s bankruptcy. However it may not be practicable to make such an order as the respondent may wish to challenge any amount of remuneration and costs and expenses by the creditors. I would therefore propose to reserve liberty to the respondent to apply further for the relief she seeks if the issue of remuneration and reimbursement of costs and expenses and legal costs is resolved.
I will hear the parties on the issue of the costs of the application.
I certify that the preceding forty‑three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate:
Dated: 22 August 2000
Counsel for the Applicant: Ms F Macleod Solicitor for the Applicant: Cornwall Stodart Counsel for the Respondent: Mr P Bornstein Solicitor for the Respondent: Irlicht & Broberg Date of Hearing: 24 July 2000 Date of Judgment: 22 August 2000
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